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Justice Dept: No Charges Coming Soon Against Prisoner Who Was Waterboarded

Prosecutors have hit a wall in their case against Abd al-Rahim al-Nashiri, who is accused of masterminding the bombing of the USS Cole. Al-Nashiri, believed to be a close associate of Osama bin Laden, was waterboarded while in CIA custody

The military prosecution of a Guantanamo prisoner — alleged to be a senior al-Qaida operative, a close associate of Osama bin Laden and the mastermind of the deadly attack on the USS Cole in Yemen — has come to a halt, reported The Washington Post.

The prisoner, Abd al-Rahim al-Nashiri, was waterboarded while in CIA custody. He allegedly confessed to orchestrating the suicide attack on the Cole attack — which killed 17 sailors and wounded many more in October 2000 – but the CIA destroyed the videotapes of his interrogation. Charges against him were withdrawn in February 2009 and later dismissed because of the Obama administration’s concerns about the legitimacy of the military commissions set up by the Bush administration. His trial was supposed to be—as the Post describes it—“the signature trial of a major al-Qaeda figure under a reformed system of military commissions.”

But in a court filing last week, the Justice Department acknowledged that "no charges are either pending or contemplated with respect to al-Nashiri in the near future," the Post noted.

As we’ve reported, the government has more often than not lost in fighting Guantanamo prisoners’ habeas lawsuits – 8 of 15 cases &ndash when inmates alleged that either their confessions or witnesses’ testimony had been obtained through coercive techniques. From a recent New York Times editorial based on our story:

A new report prepared jointly by ProPublica and the National Law Journal showed that the government has lost more than half the cases where Guantánamo prisoners have challenged their detention because they were forcibly interrogated. In some cases the physical coercion was applied by foreign agents working at the behest of the United States; in other cases it was by United States agents.

Even in cases where the government later went back and tried to obtain confessions using “clean,” non-coercive methods, judges are saying those confessions too are tainted by the earlier forcible methods. In most cases, the prisoners have not actually walked free because the government is appealing the decisions. But the trend suggests that the government will continue to have a hard time proving its case even against those prisoners who should be detained.

Despite the Justice Department’s statements, the Defense Department told the Post that the case was still moving forward.

“Prosecutors in the Office of Military Commissions are actively investigating the case against Mr. al-Nashiri and are developing charges against him,” a statement from the Defense Department read.

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